From today's order by Chief Judge Reed O'Connor (N.D. Tex.) in Doe v. X Corp.:
[The federal] Non-Consensual Intimate Image ("NCII") disclosure prohibition, colloquially known as the "revenge porn statute[,]" … prohibits anyone from recklessly or knowingly disclosing another's "intimate visual depiction … without the consent of the individual" and imposes statutory damages of $150,000 for violations. It excludes from liability those disclosures containing "commercial pornographic content, unless that content was produced by force, fraud, misrepresentation, or coercion of the depicted individual." …
Plaintiff John Doe ("Plaintiff") creates posts on OnlyFans containing sexually explicit content. OnlyFans is a subscription-based platform on which creators post content for subscribers to view. The OnlyFans terms of service prohibit any user from taking and republishing, or otherwise reproducing, content from its site without permission. Plaintiff has also created pornography produced by Falcon Studios, SayUncle, Pride Studios, and ASG Max. Each of these studios grants viewers of its commercial pornography a limited license for viewing that does not permit republishing or otherwise reproducing images on a website or social media platform….
A third party copied commercial pornographic content from Plaintiff's OnlyFans and studio-based productions and uploaded it to X without his consent, violating the OnlyFans terms and conditions and the studios' licensing agreements. Plaintiff contends that the person who copied his images off these accounts "misrepresented [his or her] willingness to comply with the acceptable use policy and terms of service" on his platforms and thus "fraudulently gained access to [his] intimate visual depictions." He alleges that the third party reposted the content to X and that X disclosed it to xAI. Accordingly, Plaintiff asserts the third party "produced" the stolen images by fraud and misrepresentation. He also alleges he informed X that "he did not consent to disclosure of his intimate images" on X, including by X to xAI. Therefore, he claims X has disclosed his commercial pornographic content which was "produced by fraud" or "misrepresentation" without his consent in violation of Section 6851….
Here's the heart of the analysis (though the full opinion also deals with some other complicated statutory arguments):
